AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This Amendment No. 1, dated as of March 14, 2006 (this
"Amendment No. 1"), to the Rights Agreement, dated as of December 14, 1999 (the
"Rights Agreement"), between Aztar Corporation, a Delaware corporation (the
"Company"), and Mellon Investor Services LLC, a New Jersey limited liability
company (as successor to ChaseMellon Shareholder Services, L.L.C.), as rights
agent (the "Rights Agent").
W I T N E S S E T H:
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WHEREAS, the Company and the Rights Agent have previously
entered into the Rights Agreement; and
WHEREAS, the Company desires to amend the Rights Agreement in
accordance with Section 27 thereof; and
WHEREAS, the Company, Pinnacle Entertainment Inc., a Delaware
corporation ("Pinnacle"), and PNK Development 1, Inc., a Delaware corporation
and a wholly-owned subsidiary of Pinnacle ("Merger Sub"), have entered into an
Agreement and Plan of Merger, dated as of March 13, 2006, (the "Merger
Agreement"), pursuant to which Merger Sub will merge with and into the Company,
with the Company surviving that merger; and
WHEREAS, at a special meeting of the Board of Directors of the
Company (the "Board") held on March 12, 2006, the Board approved the amendment
of the Rights Agreement in the manner set forth herein; and
NOW, THEREFORE, in consideration of the foregoing and mutual
agreements set forth in the Rights Agreement and this Amendment No. 1, the
parties agree as follows:
1. Amendment to Definition of "Acquiring Person." Section 1(a) of the
Rights Agreement is amended to add the following sentence after the
last sentence thereof: "Notwithstanding the foregoing or any provision
to the contrary in this Agreement, none of Pinnacle Corp., a Delaware
corporation, ("Pinnacle"), its Subsidiaries, Affiliates or Associates,
including PNK Development 1, Inc., a Delaware corporation and a wholly
owned subsidiary of Pinnacle ("Merger Sub"), is, nor shall any of them
be deemed to be, an Acquiring Person by virtue of (i) their
acquisition, or their right to acquire, beneficial ownership of Common
Stock of the Company as a result of their execution of the Agreement
and Plan of Merger, dated March 13, 2006 by and among Pinnacle, the
Company and Merger Sub (the "Merger Agreement"), (ii) the consummation
of the Merger (as defined in the Merger Agreement), or (iii) any other
transaction contemplated by the Merger Agreement, it being the purpose
of the Company in adopting this amendment to the Agreement that neither
the execution of the Merger Agreement by any of the parties nor the
consummation of the transactions contemplated thereby shall in any
respect give rise to any provision of the Agreement becoming
effective."
2. Amendment to Definition of "Distribution Date." Section 1(l) of the
Rights Agreement is amended to add the following proviso at the end of
such section: "; provided, however, that notwithstanding the foregoing,
a Distribution Date shall not occur or be deemed to have occurred as a
result of the execution of the Merger Agreement or the announcement or
consummation of the transactions contemplated thereby pursuant to the
terms of the Merger Agreement."
3. Amendment to Definition of "Stock Acquisition Date." Section 1(ee) of
the Rights Agreement is amended to add the following proviso at the end
of such section: "; provided, however, that notwithstanding the
foregoing, a Stock Acquisition Date shall not occur or be deemed to
have occurred as a result of the execution of the Merger Agreement or
the announcement or consummation of the transactions contemplated
thereby pursuant to the terms of the Merger Agreement."
4. Amendment to Definition of "Section 11(a)(ii) Event." Section 1(bb) of
the Rights Agreement is amended to add the following proviso at the end
of such section: "; provided, however, that notwithstanding the
foregoing, a Section 11(a)(ii) Event shall not occur or be deemed to
have occurred as a result of the execution of the Merger Agreement or
the announcement or consummation of the transactions contemplated
thereby pursuant to the terms of the Merger Agreement."
5. Amendment to Definition of " Section 13 Event." Section 1(cc) of the
Rights Agreement is amended to add the following proviso at the end of
such section: "; provided, however, that notwithstanding the foregoing,
a Section 13 Event shall not occur or be deemed to have occurred as a
result of the execution of the Merger Agreement or the announcement or
consummation of the transactions contemplated thereby pursuant to the
terms of the Merger Agreement."
6. Amendment to Definition of "Triggering Event." Section 1(jj) of the
Rights Agreement is amended to add the following proviso at the end of
such section: "; provided, however, that notwithstanding the foregoing,
a Triggering Event shall not occur or be deemed to have occurred as a
result of the execution of the Merger Agreement or the announcement or
consummation of the transactions contemplated thereby pursuant to the
terms of the Merger Agreement."
7. Amendment to Section (3)(a). Section 3(a) of the Rights Agreement is
amended to add the following sentence after the last sentence thereof:
"Notwithstanding the foregoing or any provision to the contrary in this
Agreement, a Distribution Date shall not shall not occur or be deemed
to have occurred as a result of the execution of the Merger Agreement
or the announcement or consummation of the transactions contemplated
thereby pursuant to the terms of the Merger Agreement."
8. Amendment to Section 11(a)(ii). Section 11(a)(ii) of the Rights
Agreement is amended to add the following proviso at the end of such
section: "; provided, however, that notwithstanding the foregoing, no
provision for adjustment shall be made pursuant to this Section
11(a)(ii) as a result of the execution of the Merger Agreement or the
announcement or consummation of the transactions contemplated thereby
pursuant to the terms of the Merger Agreement."
9. Amendment to Section 13(a). Section 13(a) of the Rights Agreement is
amended to add the following proviso at the end of such section: ";
provided, however, that notwithstanding the foregoing, no provision for
adjustment shall be made pursuant to this Section 13(a) as a result of
the execution of the Merger Agreement or the announcement or
consummation of the transactions contemplated thereby pursuant to the
terms of the Merger Agreement."
10. Addition of new Section 35. A new Section 35 is hereby added reading in
its entirety as follows: "This Agreement and the Rights established
hereby will terminate in all respects immediately prior to the
Effective Time (as defined in the Merger Agreement). The Company hereby
agrees to promptly notify the Rights Agent, in writing, upon the
occurrence of the Effective Time (as defined in the Merger Agreement),
which notice shall specify (i) that the Effective Time (as defined in
the Merger Agreement) has occurred, and (ii) the date upon which this
Agreement and the Rights established hereby were terminated."
11. Termination of Merger Agreement. If for any reason the Merger Agreement
is terminated and the Merger is abandoned, then this Amendment shall be
of no further force and effect and the Agreement shall remain exactly
the same as it existed immediately prior to execution of this Amendment
No. 1.
12. Definitions. Terms not otherwise defined in this Amendment No. 1 shall
have the meaning ascribed to such terms as in the Rights Agreement. The
term "Agreement" or "Rights Agreement" as used in the Rights Agreement
shall be deemed to refer to the Rights Agreement as amended hereby, and
all references to the Agreement or Rights Agreement shall be deemed to
include this Amendment No. 1.
13. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the
laws that might otherwise govern under applicable principles of
conflict of laws; provided, however, that all provisions of this
Amendment No. 1 regarding the rights, duties and obligations of the
Rights Agent shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to contracts executed in
and to be performed in that State.
14. Counterparts. This Amendment No. 1 may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have
been signed by each party and delivered to the other parties.
15. Descriptive Headings. Descriptive headings of the several Sections of
this Amendment No. 1 are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions
hereof.
16. Effectiveness. This Amendment No. 1 shall be effective as of the date
first written above, and except as expressly set forth herein, the
Rights Agreement shall remain in full force and effect and otherwise
shall be unaffected hereby.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed as of the day and year first above written.
AZTAR CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Chief Financial Officer,
Vice President and
Treasurer
MELLON INVESTOR SERVICES, LLC,
as Rights Agent
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Client Relationship
Executive
